Weber v. FUJIFILM Med Sys USA Inc et al

Filing 265

RULING ON PENDING DISCOVERY MOTIONS: granting in limited part and denying in large part 198 Motion to Compel Discovery and for Cost and Fees; granting in part and denying in part 238 Second Motion to Compel Discovery and for Rule 37 Relief; granting 242 Motion to Seal Confidential Documents. Signed by Judge Joan G. Margolis on 7/27/2011. (Rodko, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
JOHN J. WEBER
:
:
:
v.
:
:
FUJIFILM MEDICAL SYSTEMS, U.S.A.,
:
ET AL.
:
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3:10 CV 401 (JBA)

JULY 27, 2011

RULING ON PENDING DISCOVERY MOTIONS
The factual and procedural history behind this vastly over-litigated lawsuit is set forth
in the considerable rulings of U.S. District Judge Janet Bond Arterton, and in the two
discovery rulings by this Magistrate Judge – Ruling on Plaintiff’s Motion to Compel Documents
Claimed by Defendants to be Privileged, filed July 15, 2010 (Dkt. #98), 2010 WL 5834839;
Ruling on Plaintiff’s Motion for Court Approval of Counsel’s Contact with Former Employees
of Defendants and on Defendants’ Cross-Motion for Protective Order in Relation to Plaintiff’s
Request to Conduct Ex Parte Interviews of Former Employees, filed July 19, 2010 (Dkt. #99),
2010 WL 2836720; Ruling on Plaintiff’s Objection to Ruling on Plaintiff’s Motion for Court
Approval of Counsel’s Contact with Former Employees of Defendants, filed December 3, 2010
(Dkt. #189); Ruling on Defendants’ Motions for Protective Order Prohibiting the Depositions
of Kazuo Nakamura and Shigetaki Komori, filed January 24, 2011 (Dkt. #210), 2011 WL
677278; Ruling on Plaintiff’s Objection to Magistrate Judge’s Ruling, also filed January 24,
2011 (Dkt. #211), 2011 WL 677282; Ruling on Plaintiff’s Motion to Compel Further
Deposition of Hioraki Tada, also filed January 24, 2011 (Dkt. #212), 2011 WL 282180; Ruling
on FUJIFILM Holdings Corporation’s Motion to Dismiss for Lack of Personal Jurisdiction, filed
February 4, 2011 (Dkt. #220), 2011 WL 446895; Ruling on Motion to Compel Discovery, filed

February 17, 2011 (Dkt. #227), 2011 WL 674026; and Ruling on Plaintiff’s Motion to Dismiss
FUJIFILM Medical Systems U.S.A., Inc.’s Counterclaims, filed February 28, 2011 (Dkt. #233),
2011 WL 7811172. (See also Dkts. ##22, 24, 41, 49, 94, 95, 96, 146, 150, 190, 197, 228,
231, 237, 240, 256, 260).
Except for the discovery at issue in the three pending motions addressed here, the
discovery at issue in Plaintiff’s Motion for Partial Reconsideration of the Court’s February 17,
2011 Ruling on Defendants’ Motion to Compel Discovery and Awards of Sanctions, filed
February 25, 2011 (Dkt. #230; see also Dkts. ##232, 236), which is pending before Judge
Arterton, and the depositions of Kazuo Nakamura and Shigetaka Komori to be held at the
U.S. Embassy in Tokyo on August 22, 2011 (Dkt. #260), all discovery has been completed.
(See Dkt. #231, at 13-21, 28-45).
Three discovery motions are presently pending before this Magistrate Judge. First,
on December 16, 2010, plaintiff filed his Motion to Compel Discovery Responses and for
Costs and Fees, with brief and affidavit in support. (Dkt. #198).1 On January 6, 2011,

1

Thirty-seven exhibits were attached to the affidavit of counsel, sworn to December 16,
2010: copies of Plaintiff’s First Set of Interrogatories and Requests for Production, directed to
defendants, dated May 21, 2010 (Exhs. A-C); copies of written correspondence between counsel,
dated June 18 and 22, July 12, October 15 and 29, November 8, 12, 23 and 29, and December 3,
2010 (Exhs. D, H, M, P, T, V-X, EE-HH); copies of defendants’ Answers to Plaintiff’s First Set of
Interrogatories, undated or sworn to June 20 or 21, 2010 (Exhs. E-G); copies of defendants’
Objections to Plaintiff’s First Request for Production of Documents, dated June 22, 2010 (Exhs. IK); copy of defendants’ Responses and Objections to Plaintiff’s First Request for Production of
Documents, dated July 12 and 16, 2010 (Exh. L, N-O); copies of Plaintiff’s Second Set of
Interrogatories and Requests for Production, directed to defendants, dated October 15, 2010
(Exhs. Q-S); copies of e-mail correspondence between counsel, dated November 1, 2010 (Exh. U);
copies of defendants’ Responses and Objections to Plaintiff’s Second Request for Production of
Documents, dated or sworn to November 15, 2010 (Exh. Y-DD); excerpts from deposition of
Hiroaki Tada, taken on April 29, 2010 (Exh. II); copy of Amended Privilege Log (Exh. JJ); and copy
of supplemental to Responses to Second Set of Requests for Production of Documents (Exh. KK).

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defendants filed their brief in opposition (Dkt. #204),2 as to which plaintiff filed a reply brief
two weeks later. (Dkt. #209).3 Plaintiff filed a Supplemental Memorandum on April 18,
2011. (Dkt. #239).
Second, on April 18, 2011, plaintiff filed his Second Motion to Compel Discovery
Responses and for Rule 37 Relief, with brief and affidavit in support. (Dkt. #238).4 On May

2

Three exhibits were attached: copy of written correspondence between counsel, dated
January 3, 2011 (Exh. 1); excerpts from the deposition of Teresa Oakley, taken on December 6,
2010 (Exh. 2); and excerpts from the deposition of Pamela Doyle, taken on December 9, 2010
(Exh. 3).
3

Four exhibits were attached: copy of written correspondence between counsel, dated
January 19, 2011, with multiple attachments (Exh. A); copy of Revised Second Supplemental
Privilege Log (Exh. B); copy of written correspondence between counsel, dated January 20, 2011,
with attachment (Exh. C); copy of photographs of Board of Directors of defendant FUJIFILM
Holdings Corp. (Exh. D); and additional excerpts form the Oakley deposition (Exh. E).
4

Another thirty-two exhibits were attached to the affidavit of plaintiff’s counsel, sworn to
April 18, 2011: copy of Plaintiff’s First Set of Interrogatories and Requests for Production Directed
to Defendant FUJIFILM Corp., dated November 30, 2010 (Exh. A); copies of Plaintiff’s Third Set of
Interrogatories and Requests for Production, directed to defendants, also dated November 30,
2010 (Exhs. B-C); copies of defendants’ Answers to Plaintiff’s First Set of Interrogatories, dated
December 30, 2010 (Exhs. D-E); copies of defendants’ Answers to Plaintiff’s Third Set of
Interrogatories, also dated December 30, 2010 or sworn to December 25, 2010 (Exhs. F-H); copy
of defendant’s Responses and Objections of Plaintiff’s Third Set of Requests for Production of
Documents, also dated December 30, 2010 (Exh. I); copies of written correspondence between
counsel, dated January 20, 25 and 31, February 16, March 8 and 22, 2011 (Exhs. J-L, N-P); copies
of e-mail correspondence between counsel, dated January 22, February 8-9, and April 11, 2011
(Exhs. M, DD); copy of Supplemental Privilege Log (Exh. Q); copy of Revised Second Supplemental
Privilege Log (Exh. R); copy of defendants’ e-mails, dated October 27, 2009, and January 22,
February 14 and 25, 2008, with attachment (Exh. R-1, V); copy of agreement, dated September 6,
2009, in Japanese and in English (Exh. S); copy of confidential memo, dated July 14, 2009, in
Japanese and in English (Exh. T); excerpts from the deposition of Lawrence Hart, taken on
November 12, 2010 (Exh. U); copy of defendant’s Answers to Plaintiff’s First Set of Interrogatories,
sworn to June 20, 2010 (Exh. W); copy of confidential Audit Reports, dated September 30, 1996,
October 18, 1999, April 30, 2002, November 26, 2004, November 30, 2007, and November 30,
2009 in Japanese and in English (Exh. X); excerpts from the deposition transcript of Ryutaro
Hosoda, taken on August 31, 2010 (Exh. Y); defendant’s memorandum, dated October 24, 2009, in
Japanese and in English (Exh. Z); excerpts of telephonic conference before Judge Arterton on
November 30, 2010 (Exh. AA); letter from defendant, dated October 10, 2008 (Exh. AA-1); and emails from defendant, dated October 22-23 and December 2, 2008, and October 19, 2009 (Exhs.
BB-CC, EE).

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9, 2011, defendants filed their brief in opposition (Dkt. #241),5 as to which plaintiff filed his
reply brief twenty-six days later. (Dkt. #244;6 see also Dkts. ##243, 247).
On May 9, 2011, defendants also filed the third motion, their Motion to Seal
Confidential Documents (Dkt. #242), as to which plaintiff filed his brief in opposition eighteen
days later. (Dkt. #245). Defendants filed their reply brief on June 10, 2011. (Dkt. #250).
These three motions were referred to this Magistrate Judge on June 1, 2011. (Dkt.
#248). For the reasons set forth below, plaintiff’s Motion to Compel Discovery Responses
and for Costs and Fees (Dkt. #198) is granted in limited part and denied in large part,
plaintiff’s Second Motion to Compel Discovery Responses and for Rule 37 Relief (Dkt. #238)
is granted in part and denied in part, and defendants’ Motion to Seal Confidential Documents
(Dkt. #242) is granted.
I. DISCUSSION
A. PLAINTIFF’S MOTION TO COMPEL (Dkt. #198)
Of the five issues raised in plaintiff’s motion (see Dkt. #198, Brief at 8-20), two have
been resolved during the telephone conferences held with Judge Arterton on November 30,
2010 and February 18, 2011 (Dkt. #239, at 1-2) and three remain for decision by the Court
(id. at 2).
1. ELECTRONIC COMMUNICATIONS
At issue here is plaintiff’s First Set of Requests for Production No. 15 directed to
defendant FUJIFILM Medical Systems USA, Inc. [“defendant FMSU”], which seeks any and

5

Attached as Exh. 1 is a copy of correspondence between counsel, dated May 9, 2011.

6

Attached as Exh. 1 is a copy of the First Amended Complaint, filed April 21, 2011, in
FUJIFILM Medical Systems U.S.A., Inc. v. Weber, filed in the Supreme Court of the State of New
York, County of Westchester.

4

all communications by or to defendant Hiroaki Tada [“defendant Tada”] regarding the
merging into defendant FMSU of Empiric and/or Problem Solving Concepts, Inc. (a/k/a Pro
Solv) from 2008 through 2010, as to which defendant FMSU objected on a variety of grounds
but without waiving its objections, indicated that responsive documents previously had been
produced in response to a subpoena served on defendant Tada. (Dkt. #198, Brief at 8 &
Exhs. A, N).
From written correspondence between counsel on July 16, October 15, November 8,
12, 23 and 29, and December 3, 2010, the crux of this dispute is the discovery of a single
e-mail, dated February 2, 2009 (JW-608) that had not been produced by defendant FMSU,
which defendant explained may have been deleted in the normal course of business prior to
a litigation hold being placed on defendant FMSU’s computer system on March 11, 2010; in
addition to the electronically stored information [“ESI”] search of plaintiff’s e-mails from
October 2009 through January 2010 provided to plaintiff, defendant FMSU offered to produce
plaintiff’s sent e-mails from February-April 2009, but plaintiff insisted on all of plaintiff’s sent
e-mails during the time defendant Tada was President and CEO, as well as multiple search
terms in the e-mail files of defendant Tada, Jonathan File and Teresa Oakley in 2009. (Id.
at 8-12 & Exhs. A, E, P, V, X, EE-HH). In addition, plaintiff argues that the litigation hold was
untimely, in that litigation was anticipated no later than July 14, 2009. (Id. at 12-13 & Exhs.
II-JJ).
In their brief in opposition, defendants have represented that plaintiff’s motion is
moot on this point, in that defendant FMSU previously reviewed more than 5,600 e-mails and
more than 70,000 pages of documents, of which only ninety-six pages were responsive, that
it reviewed an additional 2,100 pages of documents from February-April 2009, all of which

5

were either non-responsive, already had been produced, or were “highly confidential” or
privileged with respect to an unrelated lawsuit. (Dkt. #204, at 2-3 & nns. 2-3 & Exh. 1). In
addition, to the extent that plaintiff seeks clarification of how defendant FMSU preserved its
back-up tapes of e-mails, defendants argue that “this new demand is inappropriate and
untimely . . . . because [p]laintiff never issued this discovery demand.” (Id. at 3).
In his reply brief, plaintiff argues that the issue is not moot, in that on January 3,
2011, defendants produced an additional ninety-seven pages of documents as result of the
new search, on January 19, 2011, defendants provided three complete e-mail chains
(DEF7298-7315), defendants added 332 new pages of documents claimed to be privileged,
and the “newly discovered” e-mails found in DEF7310-14 are the only e-mails produced
between defendant Tada and Mr. Takahashi, who is the second highest ranking official of
defendant FUJIFILM Holdings Corporation [“defendant FH”] in Japan. (Dkt. #209, at 1-5 &
Exhs. A, D). Plaintiff contends that this course of events “doesn’t add up and is cause for
additional concern[,]” thus “highlight[ing] the need for Court intervention with respect to
[d]efendants’ handling of discovery in this matter overall . . . .” (Id. at 2, 4). With regard
to the requested supplementation of what steps were taken to preserve back-up tapes of emails, plaintiff points to Interrogatories Nos. 4-5 of his First Set of Interrogatories, which
sought that very information. (Id. at 4-5; see also Dkt. #198, Brief, Exhs. A, B, E).
Despite plaintiff’s arguments, the Magistrate Judge agrees with defendants that the
issue is moot with respect to Request No. 15 of plaintiff’s First Set of Requests for Production
directed to defendant FMSU, which is the discovery dispute raised in this motion, and not
Interrogatories Nos. 4-5 of his First Set of Interrogatories. Defendant FMSU has produced
the new documents it found through its additional search. In an abundance of caution,

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however, in order to satisfy plaintiff that he has received all responsive, non-privileged
documents, on or before August 8, 2011, defendant FMSU shall provide to this Magistrate
Judge’s Chambers copies of the 332 new pages that appear on defendant FMSU’s Revised
Second Supplemental Privilege Log, for her in camera review on the issue of privilege. See
Ruling on Plaintiff’s Motion to Compel Documents Claimed by Defendants to be Privileged,
filed July 15, 2010 (Dkt. #98), 2010 WL 5834839; Ruling on Plaintiff’s Objection to
Magistrate Judge’s Ruling, filed January 24, 2011 (Dkt. #211), 2011 WL 677282. Thus,
plaintiff’s motion is granted in limited part on this issue.
2. BOARD MEETING MINUTES FROM 1986 THROUGH THE PRESENT
Plaintiff’s Second Set of Requests for Production No. 2, directed to defendant
FUJIFILM Holdings America Corporation [“defendant HLUS”] seeks copies of all Board of
Directors meeting minutes from 1986 through the present of both defendant HLUS and
defendant FMSU; while defendant HLUS objected on a variety of grounds, it agreed to
produce certain documents, without waiving its objection. (Dkt. #198, Brief at 16-17 & Exhs.
R, Z). After an exchange of written correspondence on November 15, 23 and 29, and
December 3, 2010, defendants produced Board Minutes of defendant FMSU from 1987, 1988,
1992, 1998, 2001 and 2006, relating to defendant FMSU’s profit sharing plan. (Id. at 16-17
& Exhs. Z, EE-FF, HH, KK). In this motion, plaintiff seeks the Board meeting minutes from
both corporations on all issues for all twenty-five years since 1986. (Id. at 16-17).
In their brief in opposition, defendants represent that they have produced all portions
of board meeting minutes that “include references [they] can identify as relevant to
[p]laintiff’s claims.” (Dkt. #204, at 3-4).

In his reply brief, plaintiff asserts that these

minutes may be relevant to defendant FMSU’s counterclaims against plaintiff regarding

7

Louise Collins, as well as “may reflect [on] [p]laintiff’s performance as an executive at
[defendant] FMSU . . . .” (Dkt. #209, at 6-7). In light of defendants’ representations that
they have produced all relevant minutes of both boards, plaintiff’s motion is denied on this
issue.
3. RESPONSIVE DOCUMENTS IDENTIFIED IN DEPOSITIONS THAT HAVE NOT
BEEN PRODUCED
At her deposition, taken on December 6, 2010, of Teresa Oakley, defendant FMSU’s
Vice President of Human Resources, Oakley testified that she kept her own notes regarding
personnel issues in which she was involved, including those relating to plaintiff’s termination;
plaintiff contends that these notes are responsive to at least four of his First Requests for
Production directed to defendant FMSU, namely Requests Nos. 5, 9, 12 and 16. (Dkt. #198,
Brief at 18-19 & Exh. A). Similarly, at the deposition of Pamela Doyle, defendant FMSU’s
Manager of Payroll and Benefits, Doyle testified that she had about fifteen to twenty personal
notes regarding the Collins matter, of which defendants have produced only “about six”
notes; plaintiff posits that these notes are responsive to at least four of his Second Requests
for Production directed to defendant FMSU, namely Requests Nos. 1, 3, 17 and 22. (Id. at
19-20 & Exh. Q).
In their brief in opposition, defendants argue that plaintiff has misstated the Oakley
and Doyle testimony, but that plaintiff’s motion is moot because all the notes have been
produced. (Dkt. #204, at 5-6 & Exhs. 2-3). In his reply brief, plaintiff asserts that Oakley
testified that she kept a notebook for follow-up actions and “may” have notes in her
notebook regarding plaintiff’s claim for benefits under the Supplemental Executive Retirement
Plan [“SERP”], and that plaintiff only received six of the fifteen to twenty notes written by
Doyle. (Dkt. #209, at 7-8 & Exh. E).
8

To the extent that Oakley has any additional entries in her notebook pertaining to
plaintiff that have not already been produced, defendant FMSU shall produce copies of such
entries on or before August 5, 2011. Therefore, plaintiff’s motion is granted in part
regarding the Oakley notebook and denied as moot with respect to the Doyle notes.
4. SUMMARY
Thus, plaintiff’s Motion to Compel (Dkt. #198) is granted to the limited extent that
on or before August 8, 2011, defendant FMSU shall provide to the Magistrate Judge’s
Chambers copies of the 332 new pages that appear on its Revised Second Supplemental
Privilege Log, for her in camera review on the issue of privilege; is granted to the limited
extent that on or before August 5, 2011 defendant FMSU is to produce any entries
pertaining to plaintiff in the Oakley notebook that have not already been produced; and is
denied in all other respects.7
B. PLAINTIFF’S SECOND MOTION TO COMPEL
Six issues are raised in this motion.
1. ELECTRONIC COMMUNICATIONS
At issue here is plaintiff’s First Set of Interrogatories No. 4 directed to defendant
FUJIFILM Corporation [“defendant FF”], which seeks a description of the efforts taken by
defendant FF to preserve any ESI that may be discoverable in this matter, including the
names and titles of any individuals employed by defendant responsible for such measures,
as to which defendant FF objected on a variety of grounds but without waiving its objections,

7

Although plaintiff’s motion and brief are captioned as requests for “Costs and Fees,” no
discussion of this topic is found in either of plaintiff’s briefs (Dkt. #198, Brief & Dkt. #209), but only
in defendants’ brief in opposition. (Dkt. #204, at 6). Attorney’s fees and costs are not listed
among the items left for judicial decision in plaintiff’s Supplemental Memorandum. (Dkt. #239, at
2). Therefore, even assuming arguendo that the Court needs to address this issue, plaintiff’s
request for attorney’s fees and costs is denied.

9

indicated that Kazuya Mishima, General Manager of defendant FF’s Legal Division issued a
Litigation Hold Notice on September 28, 2010 to all relevant FF employees. (Dkt. #238, Brief
at 8 & Exhs. A, D). Plaintiff argues that defendant FF’s delay in not placing a litigation hold
until September 28, 2010 is “inexplicable[,]” resulting in prejudice to plaintiff due to the likely
destruction of ESI in the fourteen month period from July 14, 2009, when defendant FF’s
upper management first “[a]ssume[d]” there would be legal action regarding plaintiff’s layoff,
until late September 2010, some seven months after plaintiff first filed his lawsuit in state
court. (Id., Brief at 9-10 & Exhs. J, N, O, S, T). See Zubulake v. UBS Warburg, LLC, 220
F.R.D. 212, 216-17 (S.D.N.Y. 2003)(in an employment case, litigation hold should take place
when “almost everyone associated with [plaintiff] recognized the possibility that she might
sue.”). As an example, plaintiff cites to defendants’ inability to find additional ESI regarding
similarly situated employees, despite the fact that such documents do exist. (Id. at 10-11 &
Exhs. I, U, V).

Plaintiff contends that defendants’ “consistent” repetition that there is no

indication that any ESI was lost is “patently insufficient” and deserving of sanctions, including
an adverse inference instruction at trial. (Id. at 11-13 & Exhs. D, O, W)(citations omitted).
In their brief in opposition, defendants counter that plaintiff’s arguments fall far short
of the substantial burden placed on a party seeking a spoliation/adverse inference instruction
(Dkt. #241, at 2-3, 10); that for the sole example of documents that were destroyed, it was
the employee himself, not defendants, who destroyed the documents and that the other
documents were not destroyed (id. at 3; see also Dkt. #238, Exh. C); and that plaintiff’s new
request for defendants to search back-up tapes, which may be inaccessible, is untimely and
“would impose a substantial and wholly unjustified cost.” (Dkt. #241, at 3-5).
In his reply brief, plaintiff again asserts that he “has not been afforded a full

10

opportunity to assess whether [ESI] was lost to [d]efendants’ preservation and/or collection
procures[,]” and the order sought by plaintiff is “not unreasonable.” (Dkt. #244, at 5-6).
Unlike in Zubulake, defendants have not yet demonstrated that the backup tapes
sought to be searched from the period July 2009 through September 2010 are “inaccessible
backup tapes (e.g., those typically maintained for the purpose of disaster recovery).” 220
F.R.D. at 218. If the backup tapes exist for this time period, and if they are not inaccessible,
then defendant FF shall search these backup tapes and provide copies of any newly revealed
documents, if any, to plaintiff, on or before August 15, 2011. If, however, the backup
tapes no longer exist, or if they are inaccessible, then no further production is necessary.
Thus, plaintiff’s motion is granted to the limited extent set forth above. The issue of an
adverse inference should be raised before Judge Arterton prior to trial in a motion in limine.
2. MEETINGS OF DEFENDANT FF MEDICAL BUSINESS PERSONNEL IN WHICH
DEFENDANT FMSU IS MENTIONED
Also at issue is plaintiff’s First Set of Requests for Production No. 7 directed to
defendant FF, which seeks any and all documents constituting, relating or referring to any
meetings of defendant FF’s or its predecessor’s medical business personnel in which
defendant is mentioned from 1986 through the present, as to which defendant FF objected
on a variety of grounds but without waiving its objections, ultimately produced Board of
Director meeting minutes of defendant FF from 2005, 2006, 2008 and 2010 in which
defendant FMSU was mentioned. (Dkt. #238, Brief at 13-15 & Exhs. A, E, N, O). Plaintiff
argues that he should not be limited only to Board of Director meetings for the period 2007
through 2009. (Id. at 14-15).
Defendants responded that plaintiff’s request is “unreasonably broad” as it covers
any and all meetings of defendant FF, a multi-national company, that reference defendant
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FMSU and/or plaintiff, for a two-year period, and that it has produced all documents
regarding plaintiff’s termination, none of which “makes any reference to other meetings that
impacted the decision to terminate [p]laintiff’s employment.” (Dkt. #241, at 5).8
The Magistrate Judge agrees with defendants that plaintiff’s request is, indeed,
unreasonably broad, and no further production is required.
3. DOCUMENTS CONSTITUTING OF, REFERRING TO, OR RELATING TO ANY
AUDITS DONE OF ANY SUBSIDIARY OF DEFENDANT HLUS FROM 2006-10
At issue here is plaintiff’s First Set of Requests for Production No. 10 directed to
defendant FF, plaintiff’s Third Set of Requests for Production No. 6 directed to defendant
HLUS, and plaintiff’s Third Set of Requests for Production No. 6 directed to defendant FMSU,
which seek production of documents consisting of, referring to or relating to any audits done
of any subsidiary of FUJIFILM Holdings America Corporation from 2006-10, as to which
defendants objected on a variety of grounds but without waiving their objections, produced
the late 2008 KPMG audit of defendant FMSU only. (Dkt. #238, Brief at 15-16 & Exhs. A-C,
E, G, I). Plaintiff contends that he is entitled to all other audits, which he believes will
support his allegations here, as DEF7352-53 and 7381-84 demonstrated. (Id. at 16-18 &
Exhs. P, X-Z).

Plaintiff wants access to additional documents, other than the thirty-two

page Executive Summary issued by KPMG in January 2009 and the 1500 documents plaintiff
received from his subpoena to KPMG regarding its 2009 review of defendant FMSU. (Id. at
18-19 & Exhs. O, AA-1, BB-DD). Plaintiff asks that defendants be required to produce all
documents in their possession relevant to the KPMG review of defendant FMSU or be
prevented from presenting evidence as to their claim that the KPMG review played any role
in their decision to terminate plaintiff. (Id. at 19).
8

Plaintiff makes no further arguments in his reply brief on this issue. (Dkt. #244, at 7).

12

In their brief in opposition, defendants represent that they have supplemented their
responses to plaintiff’s recent demand. (Dkt. #241, at 6-7 & Exh. 1).9 Therefore, plaintiff’s
motion is denied as moot with respect to this issue.
4. INFORMATION PROVIDED BY FORMER PRESIDENTS REGARDING
DEFENDANT FMSU’S COUNTERCLAIMS
At issue here is plaintiff’s Third Set of Interrogatories No. 5 directed to defendant
HLUS and plaintiff’s Third Set of Interrogatories No. 7 directed to defendant FMSU, which
inquire whether any former President of defendant FMSU has been contacted with respect
to the matters raised by defendant FMSU’s counterclaims, and if so, additional information
about those contacts, as to which defendants objected on a variety of grounds but without
waiving their objections, provided the names of four former Presidents who were contacted
in the first or second quarters of 2010 by defense counsel or defendant HLUS’ Legal
Department. (Dkt. #238, Brief at 20 & Exhs. B-C, F). Plaintiff argues that this information
remains relevant, despite dismissal of the counterclaims, see Ruling on Plaintiff’s Motion to
Dismiss FUJIFILM Medical Systems U.S.A., Inc.’s Counterclaims, filed February 28, 2011 (Dkt.
#233), 2011 WL 7811172, as defendants insist it is “after-acquired evidence” of wrongdoing
of plaintiff, and that no privilege pertains to fact-sharing. (Id. at 20-22)(multiple citations
omitted).
In their brief in opposition, defendants argue that these communications with
defendant FMSU’s former Presidents are subject to the attorney-client privilege, under Peralta
v. Cendant Corp., 190 F.R.D. 38, 41-42(D. Conn. 1999)(Arterton, J.). (Dkt. #241, at 7-8).

9

Plaintiff has not addressed this issue in his reply brief, other than to point out that
defendants did not oppose or otherwise respond to plaintiff’s one-sentence request for production
of translations of this document. (Dkt. #244, at 10; see also, Dkt. #238, Brief at 19 & Exh. DD).
Therefore, if not already done so, defendants shall provide translations on or before August 15,
2011.

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In his reply brief, plaintiff suggests that this Court should “revisit its decision in Peralta” in
light of the more recent decision of Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 30407 (E.D. Mich. 2000), and that defendants have not met their burden of establishing the
essential elements of the attorney-client privilege. (Dkt. #244, at 7-8). In Infosystems,
issued in 2000, just one year after Peralta, the district judge in Michigan found that “the
ruling in Peralta sweeps too broadly.” 197 F.R.D. at 305.
This Court declines to “revisit” Peralta, particularly when it has been cited with
approval in numerous district court decisions issued within Second Circuit, one as recently
as two months ago. See, e.g., Gary Freidrich Enterprises, LLC v. Marvel Enterprises, Inc.,
No. 08 Civ. 1533(BSJ)(JCF), 2011 WL 2020586, at *5-7 (S.D.N.Y. May 20, 2011); Gioe v. AT
& T, Inc., No. CV 09-4545 (LDW)(AKT), 2010 WL 3780701, at *1-3 (E.D.N.Y. Sept. 20,
2010)(relying almost exclusively on Peralta); Nicholls v. Philips Semiconductor Mfg, No. 07
Civ. 6789, 2009 WL 2277869, at *1-3 (S.D.N.Y. July 27, 2009); Price v. Porter Novelli, Inc.,
No. 07 Civ. 5869 (PAC), 2008 WL 2388709, at *1-2 (S.D.N.Y. June 11, 2008)(relying almost
exclusively on Peralta); Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 232 F.R.D.
103, 112 (S.D.N.Y. 2005); Wade Williams Distrib., Inc. v. Am. Broad. Cos., Inc., No. 00 Civ.
5002 (LMM), 2004 WL 1487702, at *1-2 (S.D.N.Y. June 30, 2004)(relying almost exclusively
on Peralta); Surles v. Air France, No. 00 CIV 5004 (RMB)(FM), 2001 WL 815522, at *5-6
(S.D.N.Y. July 19, 2001), approved on other grounds over objection, 2001 WL 1142231
(S.D.N.Y Sept. 27, 2001). As the Magistrate Judge observed in Gary Freidrich Enterprises:
“Virtually all courts hold that communications between company counsel and former
company employees are privileged if they concern information obtained during the course
of employment.” 2011 WL 2020586, at *5 (citations & internal quotations omitted).

14

He

then quoted from the Surles decision, which was consistent with Peralta: “The vast majority
of federal cases hold that communications between company counsel and former company
employees are protected by the attorney-client privilege if they are focused on exploring
what the former employee knows as a result of his prior employment about the
circumstances given rise to the lawsuit.” Id. (citations omitted).10 See also Ruling on
Plaintiff’s Motion for Court Approval of Counsel’s Contact with Former Employees of
Defendants and on Defendants’ Cross-Motion for Protective Order in Relation to Plaintiff’s
Request to Conduct Ex Parte Interviews of Former Employees, filed July 19, 2010 (Dkt. #99),
2010 WL 2836720 at *1 (referencing Peralta), adopted over objection, Ruling on Plaintiff’s
Objection to Ruling on Plaintiff’s Motion for Court Approval of Counsel’s Contact with Former
Employees of Defendants, filed December 3, 2010 (Dkt. #189).
5. DOCUMENTS CONSTITUTING OF, REFERRING TO, OR RELATING TO
SALARY CONTINUATION AND HEALTH INSURANCE CONTINUATION
At issue here is plaintiff’s Third Set of Requests for Production Nos. 14-15 directed
to defendant HLUS and Third Set of Requests for Production Nos. 16-17 directed to
defendant FMSU, which seek any and all documents pertaining to the continuation of salary
and health insurance benefits for all employees terminated from 1986 to the present, as to
which defendants HLUS and FMSU objected on a variety of grounds. (Dkt. #238, Brief at
22-23 & Exhs. B-C, G, I). As in Section I.B.4 supra, plaintiff contends that this information
is relevant to defendants’ assertion of after-acquired evidence of wrongdoing by plaintiff.
(Id. at 23).
In their brief in opposition, defendants argue that plaintiff’s requests are overly broad,

10

According to WESTLAW, there are no published decisions in the Second Circuit citing the
Infosystems ruling.

15

covering twenty-six years, when only the period 1997 through 2009 would be relevant, and
would include “highly confidential” severance and separation agreements and COBRA
payments; in addition, defendants point out that defendant FMSU already “has provided
substantial documentation pertaining to its after-acquired evidence defense” and plaintiff has
had the opportunity to depose defendant FMSU’s former and current Human Resources
Managers, who could testify on these issues. (Dkt. #241, at 8-9).
In his reply brief, plaintiff counters that he did offer to exclude customary COBRA
benefits from his discovery request, for the period 1986 through the present, and in
defendant FMSU’s recently filed action in New York State Court, defendant FMSU includes
not only the Collins matter but other “‘recently’ discovered” claims of misconduct.

(Dkt.

#244, at 8-10 & n.11 & Exh. 1; see also Dkt. #238, Brief, Exh. N).
Defendants are correct that plaintiff’s requests for a twenty-six year period are vastly
overbroad. On or before August 15, 2011, defendants are to provide copies to plaintiff’s
counsel of any non-privileged documentation, for the twelve-year period 1997 to 2009,
regarding the continuation of salary or health benefits, beyond customary COBRA benefits,
to the extent that such documentation has not been previously disclosed to plaintiff. Thus,
plaintiff’s motion to compel is granted to the limited extent set forth above.
6. PRIVILEGE CLAIMS
Plaintiff now “renews” to his privilege arguments with respect to the new documents
“related to the purported Empiric ‘merger’” found in defendants’ supplemental privilege logs,
and further argues that defendants have waived their privilege “by selectively producing
redacted portions of the subject communications[,]” for example, DEF 4225-26 & DEF PRIV
022. (Dkt. #238, at 23-24 & Exhs. R & EE).

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In their brief in opposition, defendants correctly assert that the issue of privilege has
now been twice resolved against plaintiff, by this Magistrate Judge and by Judge Arterton,
but defendants fail to address the issue of waiver. (Dkt. #241). In his reply brief, plaintiff
further argues that defendants should be compelled to produce all documents listed on its
privilege logs related to “Auric Capital Corp.,” “Kenneth Ostrowsky” and/or “De Lage Laden
(‘DLL’)”. (Dkt. #244, at 10; see also Dkt. #238, Exhs. Q-R).
As set forth in Section I.A.1 supra, the Magistrate Judge already has ordered an in
camera review of the additional 332 pages in defendants’ Second Revised Supplemental
Privilege Log, which review will consider plaintiff’s waiver argument. However, to the extent
that there are documents that are relevant to claims made only in the New York State
lawsuit, and not in this federal action, plaintiff’s motion is denied – the parties here already
have overburdened Judge Arterton, and to a lesser extent this Magistrate Judge, with their
incessant discovery disputes – a burden which can now be borne by the judges in the New
York state court system.
7. SUMMARY
Thus, for the reasons stated above, plaintiff’s Second Motion to Compel (Dkt. #238)
is granted in limited part with respect to ESI in that if the backup tapes exist for this time
period, and if they are not inaccessible, then defendant FF shall search these backup tapes
and provide copies of any newly revealed documents, if any, to plaintiff, on or before
August 15, 2011, but if the backup tapes no longer exist, or if they are inaccessible, then
no further production is necessary; is granted in part with respect to documents regarding
the continuation of salary or health benefits in that on or before August 15, 2011,
defendants are to provide copies to plaintiff’s counsel of any non-privileged documentation,

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for the twelve-year period 1997 to 2009, regarding the continuation of salary or health
benefits, beyond customary COBRA benefits, to the extent that such documentation has not
been previously disclosed to plaintiff; with respect to privilege, is granted in limited part to
the extent that an in camera review has been ordered of the additional 332 pages in
defendants’ Second Revised Supplemental Privilege Log, which review will consider plaintiff’s
waiver argument; and is denied in all other respects.11
C. DEFENDANTS’ MOTION TO SEAL
In their Motion to Seal Confidential Documents, defendants contend that five of
plaintiff’s exhibits attached to plaintiff’s brief in support of his Second Motion to Compel (Dkt.
#238, Brief) contain confidential and sensitive information – namely Exhs. P, X, AA-1, BB and
CC -- and request that these five exhibits be sealed pursuant to Local Rule 5(e). (Dkts.
#242, 250). Plaintiff objects on the grounds that defendants have failed to comply with
Local Rule 5(e)(4). (Dkt. #245).
After a careful review of these five documents, the Magistrate Judge agrees that
these five documents – which contain separation agreement of former employees unrelated
to this litigation (Exh. P), and internal audits marked “Confidential” or “Confidential Subject
to Protective Order” (Exh. X, AA-1, BB-CC) – ought to be placed under seal.
Therefore, defendants’ Motion to Seal Confidential Documents (Dkt. #242) is hereby
granted.

11

As addressed in note 7 supra, plaintiff’s motion and brief asks for “Rule 37 Relief” (Dkt.
#238 & Brief), without any further discussion of attorney’s fees and costs, as to which defendants
object. (Dkt. #241, at 9-10). This issue is not addressed in plaintiff’s reply brief. (Dkt. #244).
Even assuming arguendo that plaintiff is seeking attorney’s fees and costs with respect to this
motion, plaintiff’s request is denied.

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II. CONCLUSION
For the reasons stated above, plaintiff’s Motion to Compel Discovery Responses and
for Costs and Fees (Dkt. #198) is granted in limited part and denied in large part, plaintiff’s
Second Motion to Compel Discovery Responses and for Rule 37 Relief (Dkt. #238) is granted
in part and denied in part, and defendants’ Motion to Seal Confidential Documents (Dkt.
#242) is granted.
This is not a Recommended Ruling but a Ruling on discovery, the standard of review
of which is specified in 28 U.S.C. § 636; FED . R. CIV . P. 6(a), 6(e) & 72; and Rule 72.2 of the
Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED . R. CIV . P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit).12
Dated at New Haven, Connecticut, this 27th day of July, 2011.

_/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

12

If any counsel believes that a continued settlement conference before this Magistrate
Judge would be productive, he or she should contact Chambers accordingly. (See Dkts. ##246,
259).

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